Authors: Pamela Samuelson, Phil Hill, and Tara Wheatland
Publisher: Journal of the Copyright Society of the U.S.A.(Forthcoming)
Abstract: American copyright professionals may be so accustomed to the current domestic regime of statutory damages that it may come as a surprise to learn that very few countries in the world have anything comparable. Our survey of 177 World Intellectual Property Organization member states reveals that the United States is one of only 24 nations that has a statutory damage regime. Of these 24 countries, the vast majority have developing or emerging economies and are not known for having strong copyright industries.
The United States was the first country to adopt range-based statutory damage rules for copyright infringement, and it was the only country in the world that had them for many years. Several countries that have adopted statutory damage regimes in recent years have done so under the pressure or influence of the United States. The United States both encourages and mandates the adoption of statutory damage rules through bilateral and regional trade agreements and through the Special 301 review process. Even after countries adopt statutory damage rules, they sometimes face continued criticism from the United States and domestic interests for placing sensible limitations on statutory damages not present in U.S. law.
This Article demonstrates the rarity of statutory damages and contrasts the U.S. statutory damages rules with those of other countries, where they exist. It argues that the current method of proliferating statutory damages is troubling because it inhibits the freedom of other countries to decide for themselves whether and how to impose statutory damages in a way that meshes with their respective civil legal regimes. Such limitations also deprive countries, including the United States, of the benefit of statutory experimentations that eventually may lead to a more precise calibration of the balance between effective and just outcomes. Part I explains the methodology and findings of our global survey of statutory damages provisions. Part II examines various U.S. efforts to spread statutory damages around the world through bilateral and regional trade agreements. It also explains how increasingly specific requirements in those trade agreements restrict the ways that other countries can tailor the remedy to suit their interests. Part III highlights the ways in which some countries have succeeded in providing some constraints in their statutory damage provisions that are not present in the United States. Part IV examines the emergence of statutory damages requirements in recent multilateral trade agreements.
